St. Paul, Minn. (CN) — The Minnesota Supreme Court heard arguments Thursday from voters who seek to remove Donald Trump from 2024 presidential ballots in the state, marking the latest step in the case’s likely journey to the U.S. Supreme Court.
A bipartisan group of Minnesota voters, including several former state officials, has challenged Trump’s eligibility to run for the presidency on the basis of a Reconstruction-era constitutional provision banning those who have violated an oath to support the Constitution from holding “any office, civil or military, under the United States.”
Mirroring a similar suit in Colorado, the petitioners say Trump’s encouragement of rioters at the U.S. Capitol building on Jan. 6, 2021 constituted engaging in “insurrection or rebellion” against the U.S., and therefore the provision bars him from holding office. They seek an evidentiary hearing to determine whether Trump is eligible to appear on primary or general-election ballots in next year’s election.
Arguing on behalf of the petitioners, who are led by former Secretary of State Joan Growe, was Ronald Fein, the legal director of the nonprofit Free Speech For People, which has also organized a petition to exclude Trump from the ballot in Michigan.
Fein argued that the rarely enforced Section 3 of the Constitution’s 14th Amendment, enacted to disqualify former Confederate officials from holding office, was disqualifying for Trump unless and until a two-thirds majority in both houses of Congress says otherwise.
The Constitution, Fein said, “grants Congress power to remove disqualification, but not the exclusive power to decide disqualification in the first place.”
Chief Justice Natalie Hudson, leading a smaller-than-usual court without Justice Margaret Chutich, who recused herself, or newly appointed Justice Karl Procaccini, sought Fein’s thoughts on one of the few existing Section 3 decisions from the U.S. Supreme Court, in which then-Chief Justice Salmon Chase warned of “chaos” were the provision enforced.
“You have the potential of 50 different states… deciding this question differently,” Hudson said. “That concerns me, that you have the possibility for, as Justice Chase put it, for just chaos.”
Trump’s likely appeal of any adverse decisions by a state court to the U.S. Supreme Court seriously reduced that likelihood, Fein argued in response.
What’s more, he said, the Minnesota court didn’t have a choice. According to a state law, “in the case of a review of a candidate’s eligibility to hold office,” a court may order a candidate to appear and provide evidence of eligibility, but “the court shall issue its findings and a final order for appropriate relief as soon as possible.”
Attorney Nicholas Nelson, a partner at the Minneapolis-based firm CrossCastle PLLC, argued on behalf of Trump individually and on behalf his campaign, which are both intervenors in the case. He maintained that Trump’s conduct during the Jan. 6 attack was not “engaging” in an insurrection, and that the attack itself was not an insurrection, but spent more of his allotted time arguing that Trump’s eligibility was not a question for the courts.
Nelson said this one is different from cases in which a person is deemed ineligible by easily discoverable facts, like being underage or having already hit an office's term limit.
“Someone who is known to be disqualified can be excluded from the ballot, and that just doesn’t implicate the political question,” he said. “Whether a person is eligible is a political question.”
Disqualification, rather, was a question for Congress, he said.
“The Constitution really says a lot about how this should happen, and it doesn’t mention the courts,” Nelson said.
As to the insurrection question, Nelson said, “the touchstone, obviously, is the Civil War. It doesn’t have to be the Civil War, but that’s the paradigm that we’re working from.”
“This was not an insurrection, and in particular what Mr. Trump did in connection with it was not engaging in an insurrection,” he concluded.
Nelson also argued that opening the door for courts to make eligibility decisions would be a mistake. “Petitioners would like this to be a one-off case, but we have 50 states with a lot of courts and a lot of parties who like to file lawsuits,” he said. “If this were to be the first case alleging an insurrection, or participation in an insurrection, it would not be the last.”
Also arguing against Fein was Reid LeBeau of the St. Paul-based Jacobson Law Group, who represented the Minnesota GOP.
He argued that even if Trump were ineligible for the presidency, Trump’s presence or absence on Republican primary ballots is a political question stretching beyond his eligibility for office. “The states have a much lower interest in presidential elections than they do in a local election, but the function of a primary is a purely political issue,” LeBeau said. “That implicates the First Amendment associational privilege.”
On rebuttal, Fein argued that the courts “must follow the law even if it is inconvenient” and that even the Civil War became an insurrection before the first shot was fired at Fort Sumter. On Jan. 6, 2021, he said, “the rebellion against the Constitution, as in the Civil War, began before and culminated in an insurrection.”
Minnesota Secretary of State Steve Simon is named as the petition’s respondent, but Assistant Attorney General Nathan Hartshorn steered clear of the merits of the case while representing Simon in Thursday’s arguments. Simon’s position on the case, Hartshorn said, was limited to a contention that the issue was properly before the Supreme Court, and that Simon himself did not have inherent authority to decide who could and could not be placed on the ballot.
He urged a speedy decision by the court, and argued that it need not worry about ripeness issues.
“Minnesota’s election system is the envy of the nation,” Hartshorn said, heaping praise on local election officials for driving that system. “The Secretary’s essential concern is that all of these folks are given the time they need to do their work preparing for the election.”
Minnesota has been a fulcrum in issues around Trump’s eligibility; law professor and Federalist Society member Michael Stokes Paulsen, of Minneapolis’ University of St. Thomas, was one of the authors of a paper which made waves earlier this year by arguing Trump could be disqualified from the presidency because of Jan. 6.
It’s also been a political hot spot this week; Thursday’s arguments followed a visit from President Joe Biden to a Minnesota farm as the kickoff of a tour of rural America, along with the recent announcement of Minnesota congressman Dean Phillips’ primary campaign against Biden.
Longtime Democratic stalwart Minnesota was also a top target for Trump and the GOP in 2020, though Biden carried the state by over seven percentage points.
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